Are Licencing Schemes An Effective Way To Prevent Environmental Harm?
by Olivia Draycott
What is a Licencing Scheme?
Programs for granting licences can help with the difficulties associated with classifying illegal behaviour as traditional criminal offences, instead offering a different avenue for prosecuting illegal behaviour . Although there are many categories of permits, the focus of this article will be primarily on environmental licensing programmes . The UK Environmental Agency’s (Environmental Permitting and Abstraction Licensing) Charging Scheme for 2022 outlines the levels of pollution that businesses are permitted to produce on their property and from any mobile plant, as well as the precautions that must be taken to manage and prevent pollution .
The relevance of these schemes is to outline the harm that is permitted to occur as a result of industrial practices, and to hold those who fail to meet the limits accountable.The licences provide the ground rules for permitted and banned behaviour, while also guaranteeing that activities that do not strictly fit within the parameters of criminal law can nonetheless be addressed in another way.
The UK’s licensing regimes are controlled by the Environment Agency (EA), the nation’s regulator for all environmental hazards and restorative methods . As a result, it is the responsibility of the Environment Agency to ensure compliance with all licences. check your adherence to your permission and your competence to function correctly . Furthermore, the EA has the power to determine if the applicant for the licence is a suitable operator, and therefore also have the authority to withdraw licences if the licensing requirements are violated .
Can Environmental Harms be sufficiently prevented by Licencing Schemes?
Licensing regimes are dedicated to reducing environmental impact and have shown to be effective in a variety of areas of environmental action. The majority of their success can be attributed to their voluntary adoption by businesses and manufacturers . As previously stated, there has been a significant increase in the number of businesses that voluntarily adhere to environmental management regulations in a variety of countries throughout the world, a practice known as self-regulation . These standards provide methods for formulating policies, strategies, organisational practices and control mechanisms that businesses may employ to better manage their environmental impacts . Requiring businesses to have a licence, alongside their self-regulatory actions, acts as another layer of protection for the environment. This is because the licences must be verified periodically throughout the year by the EA to ensure compliance . Due to the traceability of those responsible for the harm caused by the allocation of licences, failure to comply with such leads to an inquiry and civil penalties .
On the other hand, various challenges can arise over the course of environmental licensing processes . These challenges can be attributed to structural factors such as work overloading, technological limits and financial constraints of the EPA . Alongside these structural limitations, the existence of complex or needless bureaucratic procedures or even societal pressures, limit the positive impact that licensing schemes purport to have . This combination of concerns is accentuated by the fact that there are no legal consequences, in the form of criminal repercussions, when a licence is breached . Instead there is just a civil repercussion, often in the form of monetary penalties or removal of the licence itself . Thus, despite providing an alternative avenue for prosecution, the civil consequences are generally significantly less stigmatised and connected with a smaller degree of harm produced, despite the significant degree of harm that may have been caused by the breach .
As such, the impact of licensing schemes is fundamentally restricted. The option to prosecute through alternative means to ensure accountability for environmental harms is a progressive measure, one that ensures that liability will be enforced onto acts that would otherwise not be covered by the scope of the criminal law . Such a strategy, however, is a double-edged sword; whilst it can secure prosecutions, the proceedings are always civil which are deemed less important by the public and the monetary penalties are frequently too little to make the firm think twice about their activities .
References: Licensing Act 2003. Available at: https://www.legislation.gov.uk/ukpga/2003/17/contents (Accessed: 2 February 2023)
 The Environment Agency (Environmental Permitting and Abstraction Licensing) (England) Charging Scheme, Version 1.1, 2022
 The Environment Act 1995. Available at: https://www.legislation.gov.uk/ukpga/1995/25/contents (AccessedL 2 February 2023
 Government of the United Kingdom. How you’ll be regulated: environmental permits (2021). Available at: https://www.gov.uk/guidance/how-youll-be-regulated-environmental-permits (Accessed: 1 February 2023).
 Heras-Saizarbitoria, I., Arana, G., and Boiral, O. (2016) Outcomes of Environmental Management Systems: the Role of Motivations and Firms’ Characteristics. Bus. Strat. Env., 25: 545– 559.
 Practice, A. (2023) Self-regulation and co-regulation, Asa.org.uk. Available at: https://www.asa.org.uk/about-asa-and-cap/about-regulation/self-regulation-and-co-regulation.html#:~:text=Self%2Dregulation%20means%20that%20the,paid%20for%20its%20own%20regulation . (Accessed: 1 February 2023).
 Cristina I. Pereira, Celene B. Milanes, Rafael Sarda, Benjamin Cuker, Camilo M. Botero, Challenges at the early stages of the environmental licensing procedure and potential contributions from geomorphology, Geoscience Frontiers, Volume 12, Issue 6, 2021, https://doi.org/10.1016/j.gsf.2021.101228.
 De Godoi, Emiliano Lobo, Thiago Augusto Mendes, and André C. S. Batalhão. 2022. Implementation of Good Practices in Environmental Licensing Processes. Laws 11: 77. https://doi.org/10.3390/ laws11050077
 Environment Agency enforcement and sanctions policy (2023). Available at: https://www.gov.uk/government/publications/environment-agency-enforcement-and-sanctions-policy/environment-agency-enforcement-and-sanctions-policy#liability-for-enforcement-action (Accessed: 1 February 2023).
 Stanley, John R. (April 2005). “Polishing up the Pinto: Legal Liability, Moral Blame, and Risk”. Business Ethics Quarterly. 15 (2): 205–236.